Many people will have seen the unusual Court of Appeal decision made recently in the case of Owen v Owen. The wife, Tini Owen who was the Petitioner in this case, was said to be left trapped in a “loveless and desperately unhappy” marriage after Judges refused to grant her a divorce based on her husband’s unreasonable behaviour. Following the decision, there have been further calls, particularly in the legal profession, for changes to be made to English divorce law.

English divorce law is governed by a 44 years old statute called the Matrimonial Causes Act 1973. Under this Act, the law provides for a husband and wife to divorce after the first year of marriage, providing they can evidence that their marriage has ‘irretrievably broken down’. The existence of this break down has to be evidenced and supported by one of the five following facts:-

  1. Adultery
  2. Unreasonable behaviour
  3. Two years separation (with the Respondent’s consent)
  4. Five years separation
  5. Desertion

As couples do not normally want to wait two years for a divorce following separation, they are forced to rely upon either of the two ‘fault’ based facts of adultery or unreasonable behaviour.

Unreasonable behavior is subjective to the person issuing the divorce petition and a variety of behaviours can be cited. There has to be a causal connection between the unreasonable behaviour and the Petitioner’s decision that they can ‘no longer tolerate living with their spouse’. However, in the case of Owen, the Court of Appeal Judges stated that the current law does not allow couples to divorce solely because one of the party’s deems it to be an unhappy marriage. This case has reinforced the need for Petitioner’s to cite clear examples of unreasonable behaviour, with the specific incidents clearly pointing to the unreasonable behaviour. Without such clear evidence, there is a risk that a Judge will refuse the divorce leaving the Petitioner with no alternative but to amend the Petition at further cost, or to wait until two years after the parties’ have separated, which still requires the Respondent’s co-operation and consent.

For some time, there has been calls for English divorce law to be modernised. Many consider that spouses should be able to divorce on the basis of ‘irreconcilable differences’, thus providing a basis for a non-fault based divorce immediately after separation. This is something which the divorce courts in the United States support.

If you are considering a divorce, it is important that your Petition is accurate, and that proper consideration is given to the factual basis for divorce. King Street Solicitors LLP can help you prepare a divorce petition. We offer fixed fee packages for divorce proceedings.

Contact our family team on 01924 332395 to get tailored advice to suit you.